Hendry v Hendry & Pertiwi [2019] EWHC 1976 (Ch)

WTLR Issue: Spring 2020

ROSITA HENDRY

V

1. MICHAEL HENDRY | 2. DOROTHY PERTIWI | 3. IRWIN MITCHELL TRUSTEES LIMITED (executors of the estate of Michael Frederick Hendry, deceased)

Analysis

The claimant, who was born in the Philippines, married Michael Frederick Hendry (the deceased) on 31 October 2003. He was 20 years older and already had three adult children. They entered into a pre-nuptial agreement which provided that in the event of the marriage failing the claimant would receive a lump sum of £10,000 and a one-way flight to the Philippines. In the event, they separated on 24 June 2016. The deceased made a will on 6 August 2016 dividing his residuary estate equally between the first and second defendants and appointing the third defendant as executor. The claimant petitioned for divorce on 7 November 2016 but the deceased died before a hearing on 14 February 2017. The claimant was advised on 5 April 2017 that any claim for reasonable financial provision under the Inheritance (Provision for Family and Dependents) Act 1975 (1975 Act) had to be made within six months of the personal representatives obtaining a grant of probate. Her solicitors were therefore aware that the application had to be made within that period and, although there was no challenge to the validity of the will, they lodged a caveat and were invited by the third defendant to submit a formal letter of claim from the claimant. Her solicitors failed to do so, despite being chased for such a letter of claim. On 10 August 2017 a schedule of assets and liabilities in the estate were provided to the claimant’s solicitors who merely advised the personal representatives that the claimant thought she was entitled to half of the estate in accordance with what was described as the divorce rule. The claimant’s solicitors withdrew the caveat on 18 August 2017 and this enabled probate to be granted to the third defendant on 29 August 2017. Negotiations in the technical sense took place between the legal representatives on behalf of the parties although at no stage were they based on a considered analysis of a claim against the estate. The claimant would not move from a 50/50 split despite a final offer of a three way split by the first and second defendants. That offer was rejected on 1 February 2018 and the time limit to bring a claim under the 1975 Act expired on 1 March 2018. The claimant issued a Part 8 claim form on 27 April 2018 seeking permission under s4 of the 1975 Act.

Counsel details

Stephen Willmer (Goldsmith Chambers, Goldsmith Building, Temple, London, EC4Y 7BL, Tel: 020 7353 6802, Fax: 020 7583 5255, e-mail: clerks@goldsmithchambers.com DX: 376 Chancery Lane) instructed by Quality Solicitors Rose & Rose (The Riverside Centre, 40 High Street, Kingston upon Thames, KT1 1HL, tel: 0203 131 6648) for the claimant.
Katherine McQuail (Radcliffe Chambers, 11 New Square, Lincoln’s Inn, London, WC2A 3QB, Tel: 020 7831 0081, Fax: +44 (0)20 7405 2560 DX: 319 London) instructed by W Davies Solicitors (Acorn House, 5 Chertsey Road, Woking, Surrey, GU21 5AB, Tel: 01483 744 900, Fax: 01483 744901, DX: 2903 Woking) for the first and second defendants.

Cases referenced

Cases in bold have further reading - click to view.

  • Berger v Berger [2013] EWCA Civ 1305, [2014] WTLR 35
  • Bhusate v Patel [2019) EWHC 470 (Ch)
  • Bhusate v Patel [2019) EWHC 470 (Ch)| Berger v Berger [2013] EWCA Civ 1305
  • Cowan v Foreman [2019] EWHC 349 (Fam), [2019] WTLR 441
  • Re Dennis [1981] 2 All ER 140
  • Re Salmon [1981] Ch 167
  • [2014] WTLR 35| Cowan v Foreman [2019] EWHC 349 (Fam)
  • [2019] WTLR 441| Re Dennis [1981] 2 All ER 140| Re Salmon [1981] Ch 167

Legislation referenced

Legislation in bold has further reading - click to view.

  • 3
  • 4| Matrimonial Causes Act 1973
  • Inheritance (Provision for Family and Dependents) Act 1975
  • Inheritance (Provision for Family and Dependents) Act 1975, ss2, 3, 4
  • Matrimonial Causes Act 1973, s25
  • s2(5)
  • ss2